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GLOSSARY

The Glossary is general educational material only and does not take into account individual circumstances. It is not intended by us to be a substitute for professional estate planning advice.

GLOSSARY of terms

 

 

 

The contents of the Glossary are in summary form and at times may not provide the comprehensive technical use of the word term. This has been done so that the definitions are simple and easy to understand.

 

The Glossary is general educational material only and does not take into account individual circumstances. It is not intended by us to be a substitute for professional estate planning advice.

 

Appointor

A person who has the power under a Trust to appoint and remove the Trustees.

 

Attest

The process of signing testamentary documentation in the presence of witnesses who also sign for the purpose of declaring that a document was properly signed and declared by the signer to be his/her signature. It establishes the evidence of the fact of execution of the Will by the Willmaker.

 

Beneficiary

A person who receives a benefit under a Will or from a Trust.

 

Bequest

The process of gifting personal property in a Will.

 

Codicil

A document which has the legal effect of adding to or amending the terms of an existing Will.

 

Deceased estate

The assets owned by the deceased when he/she dies.

 

Defacto relationship

A person who is not legally married to the Willmaker but they are living together as a couple on a genuine domestic basis.

 

Estate

All of the assets owned by the Willmaker that are capable of being transferred by a Will.

 

Estate planning

A process of organising a person's assets, circumstances and personal affairs in a way that achieves what a person wishes to achieve, both during life and at death.

 

Executor

The person appointed by the Willmaker in the Willmaker's Will to administer the deceased estate. The Executor holds all of the assets of the deceased until they are distributed in accordance with the Will. If the assets are to pass to a Testamentary Discretionary Trust the Executor passes the assets to the Trustee.

 

Family Provision Legislation

This legislation gives certain eligible people the right to seek from a Court  to change what a person receives – either a share where none has been given, or a greater share of an estate after the death of a person under these laws. These laws differ in each State and Territory [in Australia], such as who is entitled to make a claim.

 

Gift

The provision of an assets under a Will.

 

Guardian

There are three different meanings for Guardian:

Testamentary Guardian – appointed under a Will to care for children who are under 18 years of age if both parents [or single parent] die. The nomination of Guardian under a Will is given significant weight however the Family Court [in Australia] can override this provision.

Guardian appointment under a Testamentary Discretionary Trust – hold some power in relation to the Trustee and Trust assets, or the views of a Guardian may have to be considered by the Trustee.

Enduring Guardian – appointed by a person o make medical and lifestyle decisions when the person becomes incapable to do so.

 

Intestate

A person who dies without a [legally binding] Will.

 

Intestacy

The effect of dying without a Will, [intestate], thus failing to dispose of assets. Each State and Territory [in Australia] has their own laws to provide for the disposal of these assets.

 

Joint tenancy

This occurs where assets are held jointly by two or more people. Upon the death of one of the joint tenants, their share of the property passes automatically to the other joint tenants (the right of survivorship) regardless of what their Will states. The ownership structure for jointly owned assets is tenants in common.

 

Legal personal representative

A general term for 'Executor' and 'Trustee' or the person appointed to administer the estate. The legal personal representative can be appointed by the Court, nominated by a Will, or selected by the person involved. Their duties are performed under the supervision of probate Courts which are governed by State and Territory law [in Australia].

 

Non Willable Assets

An expression used to distinguish assets that a person might regard as their own that cannot be given under a Will, such as superannuation proceeds, interests in family trusts, joint tenancy assets of the first person that dies, life insurance proceeds that are not paid to an estate.

 

Power or Attorney

A document appointing a person to make financial decisions when the appointor requires them to do so or is incapable of doing so. The Attorney is not allowed to make decisions about the appointor's medical or lifestyle decisions. The Attorney must act in the appointor's best interest and in accordance with any directive provided to them by the appointor.

 

Probate

An order from the Supreme Court [in Australia] which gives the Executor authority to administer the estate in accordance with the terms of the Will.

 

Real Estate

Land and improvements on land.

 

Spouse

A person's spouse is their husband or wife, and may also refer to a same sex partner.

 

Tenancy in Common

This occurs where assets are held by two or more people, in equal or unequal shares. Tenants in common can sell or otherwise dispose of their share of the property. If an owner dies their share of the property is distributed according to their Will. The other ownership structure for jointly owned assets is as joint tenants.

 

Testamentary Discretionary Trust

Is a trust established by a Will and does not come into effect until the Willmaker's death. It is a trust where the income and capital is distributed to beneficiaries on a discretionary bases, usually as decided by the Trustee.

 

Testator

A male person who makes a Will. At times used as a gender neutral reference to a female person who makes a Will. See also Testatrix and Willmaker.

 

Testatrix

A female person who makes a Will. See also Testator and Willmaker.

 

Trust

A trust has four specific elements. There must be a Trustee; there must be a Beneficiary/ies; thee must be Trust assets; and there must be intention to hold such assets upon the terms of the Trust. There are various forms of Trusts, including discretionary trusts, unit trusts and life estate trusts.

 

Trustee

The person who is the legal owner of the property in the Trust. The Trustee hold and administers the property of the Trust for the benefit of the Beneficiary/ies, in accordance with the terms of the Trust once distributed by the Executor.

 

Witness

A person who acknowledges, by their signature on a document, that they have been present when another person has signed that document. Note that there are technical requirements about witnessing Wills that must be adhered to.

 

 

 

 

 

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